Attorney Grievance Commission v. Link

BELL, Chief Judge. The Attorney Grievance Commission of Maryland, the petitioner, acting pursuant to Maryland Rule 16-751, 1 approved the filing by Bar Counsel of a Petition For Disciplinary or ⁴⁰⁷ Remedial Action charging the respondent, Harold S. Link, Jr., with violating Rule 4.4, Respect for Rights of Third Persons, 2 of the Maryland Rules of Professional Conduct (“MRPC”), as adopted by Maryland rule 16-812 and, in so doing, acting in a manner prejudicial to the administration of justice, in violation of MRPC 8.4(d). 3 We referred the case to the Honorable Robert E. Cadigan, of the Circuit Court for Baltimore County, for hearing, Rule 16-752(a), 4 and to find facts and draw conclusions of law. See 16-757(c). 5 Following the hearing, at which the complainant, Wilbert Myles, the complainant’s supervisor and the respondent, both for himself and in the petitioner’s case, all testified, the hearing court concluded that the respondent violated the rules ⁴⁰⁸ charged. Those conclusions were based on the findings of fact made by the court, after summarizing the testimony, as follows: “1.

The Incident of May 10,2002 “The Respondent’s testimony (hereinafter “Link”) is best summarized by his letter directed to Mr. Grossman dated July 4, 2002 introduced as Plaintiffs Exhibit 1(E)____ 6 “In addition, Link testified at the hearing that he has been a member of the Maryland Bar since 1990. He engages in a general practice working out of his home in Cockeysville. His practice emphasizes personal injury litigation. He employs no associates, paralegals or secretaries.

Approximately 90% of his personal injury clients are African American. Link is Caucasian. “In his testimony. Link alluded to ‘problems’ he previously encountered at the MVA in Towson when a clerk informed him he was not entitled to certain information ‘because of the Privacy Act.’ Following calls to one of the ‘higher-ups’ at MVA, Link concluded that the ‘whole MVA system is imbued with violations of the Maryland Public Information Act.’ He referred to another prior incident with a ‘government employee’ following which he asked to see the employee’s supervisor. He indicates that his conversation with the supervisor “was not friendly.’ “When Link went to the MVA office in Mondawmin on May 10, 2002 he was ‘hoping’ they would give him the insurance coverage information he needed but he “wondered’ if the MVA was ‘persisting in its policy’ of non-disclosure because of the Privacy Act.

He purposely dressed causally because he wanted to see ‘how ordinary people are treated.’ He is ‘appalled’ ⁴⁰⁹ by the way he and others are ‘treated poorly.’ Link admitted that he has had ‘difficulty’ with other agencies. His ‘standard’ is not to ‘back-down’ but rather ‘go into the mouth of the beast.’ Link stated in closing argument that the MVA is a ‘criminal organization’ and is ‘acting illegally.’ He argued that ‘its all about the little guy ... taking on the government ... whistle-blowing.’ “As stated in Link’s July 4, 2002 letter (Plaintiffs Exhibit 1(E)), he testified that the MVA Customer Service Agent, Wilbert Myles (hereinafter ‘Myles’) was rude and curt. After being asked by Myles if he was an attorney and to produce identification. Link admits that he told Myles and his supervisor, Ms. Ryce, (hereinafter ‘Ryce’) that Myles was incompetent, didn’t know the law and ‘needs to be trained properly.’ He admits that he called Myles ‘a loathsome bureaucrat.’ In his testimony, he stated Myles is ‘rude, arrogant, incompetent and lazy____ He doesn’t know the law ... he acted like a complete fool ... he was shouting ... like a complete idiot.’ Link contends that his right to tell an employee how he is doing his job is protected by the First Amendment. “When Myles refused to give Link his name, he admits that he said ‘OK, Sparky, I’ve had enough of your nonsense-let me talk to your supervisor.’ Link testified that ‘Sparky’ is a ‘meaningless term ... for someone whose name you don’t know . .. it’s a filler.

I would usually say “partner.” I am being condescending ... the term “sir” is a form of respect and I had absolutely none.’ Link denied any knowledge that ‘Sparky’ has any racial connotation or is in any way racially offensive. “Finally, Link testified that he ‘calmly answered Mr. Myles’ silly questions’ and never raised his voice during the May 2002 encounter but rather was verbally abused by Myles. Link contends that his conduct was ‘impeccable.’ ‘Wilbert Myles testified that he is 61 years old and has been a Customer Service Agent with MVA for nine years. He previously worked as a Senior Assistant Underwriter with USF & G for 15 years. He has had “four major surgeries” ⁴¹⁰ and takes ‘nine pills a day’ including a ‘heart pill.’ Myles is an African American. “On May 10, 2002 Link approached Myles’ work station and gave him an application for a driver’s record in which he had checked off ‘registration records.’ According to MVA policy, Myles requested Link’s driver’s license as identification.

When asked ‘why’ by Link, Myles responded that without identification, he could not give Link the requested information because of the Privacy Act. Myles explained that attorneys can get a complete driver’s record including name and address. Myles then inquired as to whether Link was an attorney. Link responded “what difference does it make?’ Myles offered an explanation which was in accord with his training manual.

Link then stated that Myles was ‘breaking the law' in not providing the information. “Myles described Link’s demeanor as ‘very smug and pretentious.’ Based upon Mr. Myles’ “work experience’, he suspected that Link was an attorney because they ‘have certain airs.’ “Myles testified that when Link continued the ‘name calling ... the maligning and the indignities that he hurled at me’, Myles stated ‘you need to see the supervisor.’ Link stated ‘you need to bring someone out here ... because obviously you don’t know what you are doing.’ “Before the supervisor (Ryce) was summonsed, Myles testified that Link called him ‘Sparky’ several more times. Myles took offense and protested that that was not his name and that Link’s comment was demeaning, sarcastic, disrespectful and insulting. He stated that he was humiliated, upset, infuriated and embarrassed. Myles further testified that ‘Sparky’ is just another name for the N word for ‘most people of color at my age or older.’ As Myles left his work station to speak with his supervisor, he states that Link ‘threw his driver’s license’ on the counter. “When Myles went to his supervisor’s office, she was on the telephone with customers.

She placed the customer on ‘hold a minute’ and Myles told her “what had happened.’ When the ⁴¹¹ supervisor appeared, Myles testified that Link stated ‘what took you so long?’ At the point, he stated Link was ‘irate’ and told the supervisor that ‘Sparky over here doesn’t know his job’ and that he should be retrained because he doesn’t know the law and is incompetent. Myles states that Link told his supervisor that ‘... the system needs to hire folk who have a brain because everyone I have encountered throughout the system does not have one and they are completely incompetent.’ “Myles further testified that Link asked his supervisor for his name. She gave his last name. He then asked for his first name and she replied ‘Wilbert.’ Thereafter Link continued ‘to yell’ and proceeded to refer to Myles as Wilbert which he found to be offensive and disrespectful. “In his supervisor’s presence, Link ‘proceeded to yell across the counter and pointing his finger, Wilbert, you have broken the law’ and stated that he ‘could be brought up on charges and that type of thing.’ “Myles admitted that he has not read the Privacy Act or the Maryland Public Information Act but states his training manual contains all relevant information. “After hearing Myles’ testimony, Link later testified that Myles was ‘a liar’ and that Myles was ‘incredibly rude, feisty, mean’ and like the ‘Energizer bunny.’ “Delease Ryce has been a Customer Agent with MVA since 1988.

She was Myles’ supervisor at the Mondawmin office in May 2002. While she was on the telephone, Myles came to her office and told her that an attorney refused to show his identification. She had heard ‘voices’ but couldn’t hear the conversations. “About five to ten minutes later, she left her office and went to Myles’ work station. Both Myles and Link were ‘going at it’.

Both were being ‘rude’ to each other. Their voices were not in a ‘conversational’ tone. She asked Myles to be quiet and ‘let me handle it.’ ⁴¹² “She believes Link asked her-Vhat took you so long?’ She replied that she was talking on the phone with two customers. She thinks Link said ‘you need to hire a competent person.’ Link said ‘explain to me why I had to wait ten minutes.’ She replied that ‘you didn’t produce any identification.’ She explained to Link that everyone has to show identification.

She asked Link Vhat kind of report do you need?’ She then gave him the information he had requested. She testified that Link was not rude to her. She believes Myles was ‘retaliating.’ Myles only ‘retaliated’ when Link said something to him. It was ‘back and forth’ between Myles and Link. “She stated that Link asked her for Myles’ name.

When she did so. Link referred to Myles as ‘Wilbert.’ She did not hear Link call Myles ‘Sparky.’ Ryce is an African American. “The above summary of Link’s testimony includes his testimony presented at the conclusion of Bar Counsel’s case. In addition, Link did state that Myles was incredibly ‘rude’ to three customers who were in fine before Link and he ‘sensed’ that Myles was ‘going to be trouble.’ He claims Myles ‘demanded’ Link’s identification and gave Link a ‘hate stare.’ Link states that Myles never told him that ‘Sparky' was a racially offensive epithet. Link claims that he ‘gets along with black people.’ “2.

Findings of Facts “After considering the testimony presented at the hearing before this Court on July 30, 2003 and reviewing the exhibits admitted into evidence, this Court finds the following facts by clear and convincing evidence: “1. Link casts himself in the role or protector of the ordinary citizen. He believes his cause is just and necessary. His agenda is to expose what he perceives to be dual standards and unfair policies of governmental agencies. “2.

This was not an isolated incident. Link had a pattern of past confrontations with agency personnel. ⁴¹³ “3. Link pursues his agenda with design and purposely provokes controversy utilizing tactics of sarcasm, verbal abuse, offensive and disrespectful language which is not protected by the First Amendment and had no substantial purpose. “4. Link’s agenda is misguided and his conduct was unprofessional and prejudicial to the administration of justice. “5.

Link’s anger needs to be controlled. “6. Link’s testimony that he never raised his voice during this incident is not credible. “7. Myles is a public servant trying to do his job. “8. Myles was justifiably offended and embarrassed by Link’s conduct, language and attitude. “9.

Ryce’s testimony raised inconsistencies in Myles’ testimony. This Court accepts as credible Ryce’s testimony that Myles had also raised his voice and was retaliating to Link’s verbal abuse and sarcasm. “10. Ryce is a pleasant woman and credible witness. She was acting as a ‘peace-maker.’ “11.

Link did not know that the name ‘Sparky’ was racially offensive. Link did believe he was condescending. “The undersigned has no personal knowledge of whether the name ‘Sparky’ is a racial epithet or is racially offensive. The undersigned has only heard the name in reference to a World War II radioman, electrician or the baseball manager, ‘Sparky’ Anderson. Accordingly, the undersigned is unable to make a finding of fact in that regard. “If indeed ‘Sparky’ is racially offensive, its use is obviously unprofessional, totally inappropriate and increases the seriousness and severity of the confrontation and the consequences. “Whether ‘Sparky’ is offensive or innocuous in and of itself depends upon the circumstances under which it is said, who said it and to whom it is directed.” The petitioner filed no exceptions to the hearing court’s findings of fact and conclusions of law.

It did file, however, ⁴¹⁴ Petitioner’s Recommendation for Sanctions. Noting the hearing court’s finding that the respondent’s conduct was unprofessional and engaged in the pursuit of a “misguided” agenda, in which the respondent, casting himself as the protector of the ordinary citizen, “pursues his agenda with design and purposely provokes controversy utilizing tactics of sarcasm, verbal abuse, offensive and disrespectful language which is not protected by the First Amendment and had no substantial purpose,” it recommends that the respondent be suspended from the practice of law for thirty (30) days. In support of that recommendation, the petitioner relies on Florida Bar v. Martocci, 791 So.2d 1074 (Fla.2001), Matter of Golden, 329 S.C. 335 , 496 S.E.2d 619 (1998) and Attorney Grievance Comm’n v. Alison, 317 Md. 523 , 565 A.2d 660 (1989). In Martocci, the Bar charged that Martocci made “unethical, disparaging, and profane remarks to belittle and humiliate the opposing party, Florence Berger, and her attorney ...” and engaged in an unethical confrontation with the opposing party’s father. 7 791 So.2d at 1074 .

The offensive conduct occurred, it alleged, in separate incidents during the representation of the husband in divorce proceedings and spanned a period of two years. Id. at 1075 . The referee concluded that Martocci engaged in the charged conduct, which consisted of directing demeaning, insulting and intemperate remarks 8 to ⁴¹⁵ the opposing party and her counsel and threatening, in open court, though court was not then in session, to beat that party’s father. Id.

The court accepted the referee’s sanction recommendation, publicly reprimanding Martocci and placing him on two years probation, with conditions. Id. Similarly the conduct for which the respondent attorney in Golden was sanctioned, was in connection with his representation of clients in divorce proceedings, specifically, at two depositions. In the first, the deposition of his client’s former boyfriend, who apparently informed the husband’s attorney of the former boyfriend’s relationship with the wife after it was terminated on advice of Golden, Golden’s examination displayed, the Hearing Panel determined, “his total disregard and failure to show any respect for the rights of a third party.” 496 S.E.2d at 622 .

Moreover, it was satisfied that “The extent, the intensity, the sarcasm and maliciousness, the unnecessary combativeness, the gratuitous threatening and intimidation, and the unequivocal bad manners of [Attorney’s] conduct could have been for no purpose other than to embarrass or burden [Mr. Smith].” Id. The second deposition, taken in a different case, was of the wife of Golden’s client. After the deposition, she alleged that Golden said to her: “You are a mean-spirited, vicious witch and I don’t like your face and I don’t like your voice. What I’d like, is to be locked in a room with you naked with a very sharp knife.” Id. at 621.

Later, she stated, Golden commented: “What we need for her [pointing to Mrs. Jones] is a big bag to put her in without the mouth cut out.” Id. The hearing panel concluded that Golden, in an agitated voice and without an attempt at humor, did call Mrs. Jones “mean spirited” and state that someone should be locked in a room ⁴¹⁶ with her naked and that he would like to put a bag over her without a hole for her mouth. Id. at 622. As to the first deposition, the court agreed that the attorney had violated South Carolina’s version of Rule 4.4.

It stated: “Attorney’s words speak for themselves[ 9 ] Even if we assume that the deposition witness was uncooperative, Attorney would not be justified abusing this witness in the manner illustrated above. The record further shows that Attorney interrupted Smith on numerous occasions. Moreover, the audio recording reveals the volume of Attorney’s voice was repeatedly loud, and his statements were sarcastic, rude, or otherwise inappropriate. He acted in a threatening and demeaning manner.

His conduct was outrageous and completely departed from the standards of our profession, much less basic notions of human decency and civility.” The court concurred with the hearing panel’s conclusion that Golden’s conduct after the second deposition violated Rule 8.4(d), as it was prejudicial to the administration of ⁴¹⁷ justice. Id. at 623. Noting “the serious nature of the issues and highly charged atmosphere of the deposition,” the court concluded that “Attorney’s comments only served to insult an adverse party.” Id. The court imposed as a sanction for both counts a public reprimand.

Violations of Rules 4.4 and 8.4(d) were found and sustained in Alison . The Rule 4.4 violation was premised on the respondent’s issuance of a subpoena to a newspaper reporter for the purpose, the hearing court found, of harassing him and preventing his reporting on the respondent’s trial. 317 Md. at 539 , 565 A.2d at 668 . The 8.4(d) violation was premised, inter alia, on the behavior of the respondent toward District Court clerks. When the clerks refused, in compliance with a judge’s order, to accept for filing papers tendered by the respondent post judgment, the respondent demanded, “you have to take the fucking papers,” and in their presence, used other profanities, including referring to the attorney for his opponent as a “son of a bitch” and an “asshole.” Id. at 531 , 565 A.2d at 663-64 .

As he left the area, he said “fuck you” to the supervisor. The respondent was suspended from the practice of law for ninety days. With respect to the Rule 4.4 violation, the Court rejected the only challenge to its inapplicability, the respondent’s argument, that it did not apply due to the fact that he was not representing a client, only himself. It recognized, in connection with the Rule 8.4 violation involving the verbal abuse of the District Court clerks, that there is a difference between hurling epithets during a judicial proceeding and engaging in the same conduct outside the courtroom. 317 Md. at 536-537 , 565 A.2d at 666 .

The Court pointed out, nevertheless, that while “[attorneys are not prohibited from using profane or vulgar language at all times and under all circumstances, they are prohibited from using such language when to do so would be prejudicial to the administration of justice.” Id. at 538 , 565 A.2d at 667 , citing In re Williams, 414 N.W.2d 394, 397 (Minn.1987). ⁴¹⁸ Assuming that the respondent’s words directed to the clerks were protected speech within the meaning of the First Amendment, the Court held that his speech and conduct on that occasion did not comply with the reasonable, necessary, and content-neutral restrictions imposed upon attorneys by the Maryland Rules of Professional Conduct. 10 Id. at 537 , 565 A.2d at 666-667 . We explained: ‘We have no hesitancy in concluding that Alison’s conduct in his professional dealings with the clerks was prejudicial to the administration of justice. It is not difficult to visualize the damage to the court system and to the reputation of the legal profession that would result if attorneys were free to conduct their daily business with court clerks in the manner employed by Alison. This court has not only the authority but the obligation to censure conduct of this kind by an attorney.

As in the case of speech within a courtroom, the restrictions are content-neutral, reasonable, necessary, and do not contravene First Amendment rights.” Id. at 538 , 565 A.2d at 667 . The respondent filed exceptions to the findings of fact and the conclusions of law of the hearing court. 11 To say that the respondent disagrees with the hearing court’s findings of fact is to engage in understatement. Indeed, what he thinks of the hearing court’s fact finding is summarized quite early in his submission: “2. The blatant piece of advocacy for the Commission masquerading as a Memorandum Opinion by Judge Cadigan ⁴¹⁹ is disgraceful.

It goes beyond rubber-stamping and well into the realm of overt cheerleading for the Commission. It constitutes the actions of a shameless sycophant who has openly colluded with the Commission to bring about a preordained result. It is obvious that my complete testimony was disregarded by Judge Cadigan, except for those portions which could be regarded as detrimental to my case, which were ruthlessly recorded, and frequently distorted. Mr. Myles’ testimony, which was riddled with inconsistencies and numerous outright lies, was treated as holy writ.” Thereafter, the respondent details at length the various deficiencies from which he believes the Memorandum Opinion suffers, characterizing them as errors, inaccuracies and intentional distortions.

In addition, the respondent accuses the hearing court of abdicating its responsibility as finder of fact. Concerning the court’s conclusion that he violated Rule 4.4, the respondent maintains that the Rule either does not apply or is unconstitutionally vague. If the Rule does apply, he submits, his speech directed to Mr. Myles and in criticism of the government, 12 was protected speech, that did not disrupt the operations of a courthouse and, therefore, is not sanctiona- ⁴²⁰ ble. In any event, the respondent asserts: “I had a substantial purpose in criticizing Wilbert Myles’ conduct.

I had no intent to embarrass, delay, or burden him. If such was the result of my decision to criticize a government, then the fault was his and not mine. I was delayed and burdened because of his illegal actions which did not even comply with his own training manual, let alone state or federal law.” It is well settled that, in attorney discipline cases, we review the findings of fact of the hearing court to determine whether they are based on clear and convincing evidence. See Attorney Grievance Comm’n v. Post, 379 Md. 60, 74 , 839 A.2d 718, 726 (2003); Attorney Grievance Comm’n v. Davis, 375 Md. 131, 158 , 825 A.2d 430, 446 (2003); Attorney Grievance Comm’n v. Barneys, 370 Md. 566, 577 , 805 A.2d 1040, 1046 (2002); Attorney Grievance Comm’n v. Powell, 328 Md. 276, 287 , 614 A.2d 102, 108 (1992); Attorney Grievance Comm’n v. Clements, 319 Md. 289, 298 , 572 A.2d 174, 179 (1990).

Indeed, we conduct an independent review of the record. Attorney Grievance Comm’n v. Wallace, 368 Md. 277, 288, 793 A.2d 535, 542 (2002). Moreover, we have said, the “hearing court’s findings of fact are prima facie correct and will not be disturbed unless they are shown to be clearly erroneous,” Attorney Grievance Comm’n v. Garland, 345 Md. 383, 392 , 692 A.2d 465, 469 (1997) (citing Attorney Grievance Comm’n v. Goldsborough, 330 Md. 342, 347 , 624 A.2d 503, 505 (1993)). See Attorney Grievance Comm’n v. McCoy, 369 Md. 226, 234-235 , 798 A.2d 1132, 1137 (2002), and that we will not disturb those factual findings if they are based on clear and convincing evidence.

Attorney Grievance Comm’n v. Monfried, 368 Md. 373, 388 , 794 A.2d 92, 100 (2002). On the other hand, the ultimate question, whether a lawyer has violated the professional rules, what, in other words, to make of those facts, rests with this Court. Post, 379 Md. at 74 , 839 A.2d at 726 ; Garland, 345 Md. at 392 , 692 A.2d at 469 ; Attorney Grievance Comm’n v. Breschi, 340 Md. 590, 599 , 667 A.2d 659, 663 (1995). See Attorney Grievance Comm’n v. Sheinbein, 372 Md. 224, 240 , 812 A.2d 981, 990 (2002). ⁴²¹ The findings of fact in this case are not clearly erroneous.

In fact, there is ample evidence in the record, which we have independently reviewed, to support each of them. To be sure, the hearing court did not address expressly each of the defenses the respondent raised or specifically reject his various contentions concerning the complaining witness’s credibility. As we stated recently, see Attorney Grievance Comm’n v. Braskey, 878 Md. 425 , 446, 836 A.2d 605, 618 (2003), that is not required. In Braskey, we explained: “We are unable to say why the hearing judge omitted reference to respondent’s testimony regarding the February calls.

It may be that the judge did not believe respondent; it may have been an oversight. In any case, even if the judge believed respondent, the hearing judge is not required to recount all of the evidence presented at the hearing. See Attorney Grievance Comm’n v. Granger, 374 Md. 438, 453 , 823 A.2d 611, 620 (2003) (noting that “it is elementary that the hearing judge ‘may elect to pick and choose which evidence to rely upon’ ”).” The respondent’s exceptions, to the extent that they challenge the hearing court’s findings of fact, are overruled. Turning to the question of whether, as the petitioner contends, the respondent violated Rules 4.4 and 8.4(d) or, as the respondent maintains, the rules do not apply or he did not violate them, we have been referred to no case, and we have found none, in which the conduct sought to be sanctioned occurred under circumstances similar to those sub judice.

In the cases on which the petitioner relies, including Alison , and the cases we have found, see In the Matter of Weir, 668 N.E.2d 679 (Ind.1996); In the Matter of Burns, 657 N.E.2d 738 (Ind.1995); In the Matter of Vincenti, 114 N.J. 275 , 554 A.2d 470 (1989); In the Matter of McAlevy, 69 N.J. 349 , 354 A.2d 289 (1976); In the Matter of Mezzacca, 67 N.J. 387 , 340 A.2d 658 (1975), the offending conduct occurred during the actual litigation process or while interviewing clients or others in connection with litigation or potential litigation. ⁴²² Thus, in Burns, the conduct for which the attorney was sanctioned consisted of threatening behavior and remarks made to a party to the litigation during the recess of a pretrial hearing. More specifically, the attorney said, inter alia, “Let me ... let me warn you about something. If you file anything with the bankruptcy court against me, I’ll be asking for attorney fees and punitive damages. You have my word on it, ...

And the next time you write my client a letter, I’m not going to file anything with the Court; I’m going to come over to your house and I’m going to hit you in the head with a baseball bat. Now, you may not be practicing law, but you know better than that. If I ever find out you wrote my client a letter again or sent him anything, you’ve got me to deal with. Do you understand: You better understand it right now, because I’m not going to tell you a second time.

Now, that’s my promise to you, right here on the record. I’m going to come over to your house and beat you half to death with a baseball bat.” 657 N.E.2d at 739 . Later, the attorney, aware that he was speaking on the record, acknowledged that he was threatening the opposing party physically, adding: “You’ll either follow the rules